From the Court Corridor: March Edition (2021)

This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in March 2021.

Setting a maximum ten years jail period for children and banning the recording of child’s statement as evidence

As grim as it sounds, in 2011 a Speedy Trial Tribunal sentenced a boy to ten years imprisonment in a case involving the kidnapping and murdering of a seven-year-old in Netrakona, based on the accused’s confessional testimony, who was 15 years and 7 months old at the time of the crime. This decision was later challenged at the HCD as the child filed an appeal against the verdict given by the trial court.

In August 2019 the summary verdict was pronounced following the appeal filed by the child’s lawyer. The 63 page verdict was published not until very recently. In the verdict’s profundity, the bench observed, ‘for offences punishable with death or life imprisonment, the maximum term of imprisonment against a juvenile offender or a person who became an adult during trial or arrest cannot exceed 10 years.’ The verdict also reads, ‘the confession of a child is in conflict with law under section 164 of the Code of Criminal Procedure. As a result, the child’s statement has no legal evidentiary value and, therefore, such a confession cannot form the basis of finding guilt.’ Subject to appeal, the juvenile court’s verdict was moved to the HCD and a panel of two judges found that the child’s confessional statement was recorded under Section 164 of the Code of Criminal Procedure or CrPC, which can be used as evidence in the trial. The judges later forwarded the case to the chief justice as the recording of the child’s statement under the juvenile court’s jurisdiction and some other issues had raised concerns.  In October 2018 the chief justice formed a larger bench consisting of three judges who finally overturned the child’s sentence.

The HCD then ruled that children should not be imprisoned for longer than ten years for punishable offences. Furthermore, according to the court’s latest decision, a child’s statement cannot be used or recorded as evidence. 

Recording a child’s statement is contradictory to the juvenile justice system. Also as per various Neuroscience and Social researches, children are not always mindful of the implications of their behaviour. So the court has correctly observed the merit petition as a child cannot completely comprehend the implications of his/her confessional declaration. 

Ordering the non-disclosure of identities of rape victims

Against the Justice Watch Foundation’s writ petition, which was filed in January 2021 the HCD on 25 March issued the full text of its previous order, which asked authorities to stop publishing and broadcasting the names and images of rape and other sexual harassment victims on social networking platforms and newspapers.

The order was issued by the HCD which directed that details be provided and that home secretaries, chairman of Bangladesh Press Council, and chairman of Bangladesh Telecommunication Regulatory Commission (BTRC) file separate reports on the measures taken to comply with the order. The court has issued a rule requiring the respondents to clarify why their failure to stop publishing and broadcasting the names and images of rape and other sexual harassment victims is not unconstitutional or illegal. 

The publishing of the identities of victims of rapes or other sexual assaults seems to be strictly prohibited under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Section 14 (1) of this act provides that ‘Any news, information or name and address or any other information regarding any offence, under this Act, committed or any legal proceeding thereof, of which a woman or a child is the victim, shall be published or presented as such that the acquaintance of the woman or the child shall be undisclosed.’ From a plain reading of this section, it appears that disclosing the identities of rape victims is strictly forbidden. If this prohibition is violated, the offender meets a penalty of two years imprisonment or a maximum fine of one lakh taka, or both, under section 14 (2) of the Act. From the general practices, it is quite evident that the above section is clearly not being followed by the majority of media organizations.

The public disclosure of victims’ identities seems to have fueled a widespread social tradition of victim-blaming, in which victims are judged solely on the basis of their appearance and clothes. These decisions lead to a decrease in sympathy for the victims and their families. The perpetrator is also held partially accountable for the crime by society. The most troubling part of publishing rape victims’ identities, which then aids victim-blaming, is that it makes it more difficult for the victims to report their abuses. Since they are afraid of tarnishing the family’s so-called honour and image, victims do not come forward and claim justice. Without a doubt, this culture aids in the evasion of punishment by the offenders.

The judiciary, in collaboration with the Bangladesh Telecommunication Regulatory Commission (BTRC), the Ministry of Information and Communication, and the Bangladesh Press Council, must now take the required measures to enforce the apex court’s order and safeguard the identities of rape victims.

Directing the authority concerned to take care of the tortured madrasa student and all other educational institutions to abide by the constitution and the prevalent laws

On 9 March a teacher whipped a child student at a madrasa in Chittagong’s Hathazari municipality. Since the footage of the torture went viral, there were a lot of backlashes. According to sources, the child’s guardians, being extremely religious, initially opted not to sue their child’s teacher because it appears indecent. The HCD had previously ordered concerned DCs, SPs, and OCs to submit a report on the actions taken in the student’s torture incident. The concerned individuals submitted the report to the HCD accordingly. After reviewing the records received by the local administration on the child abuse case in Hathazari the HCD bench issued this order on 14 March.

The HCD ordered the authorities to ensure that the student’s study is not hampered in any way after he was beaten mercilessly by his teacher for crying to go home with his mother. Adequate precautions have also been taken at the child’s hometown to ensure his safety. The court also ordered that all educational establishments in the region, including madrasas, follow the said guidelines.

Earlier, in 2011 in a writ petition filed by the Bangladesh Legal Aid and Services Trust (BLAST), the apex court of Bangladesh issued a rule prohibiting all types of corporal punishment upon pupils, declaring it illegal and unconstitutional. In the same year the Education Ministry released a guideline prohibiting all sorts of corporal punishment in educational institutions, based on a High Court judgment declaring physical and psychological punishment in schools to be a violation of children’s rights, particularly their fundamental rights guaranteed under Articles 27, 31, 32, and 35(5) of the constitution. It is important that this policy be followed to ensure the proper development and nourishment of children. Thus, the HCD has correctly intervened and taken some long-due measures that should have been taken by the respective authorities to protect the children from early life violence. 

Issuing a rule asking the government to explain as to why there is no separate compartment for women in trains

A writ petition was filed in January urging that women, children, physically challenged people, and senior citizens be given priority seating by allotting reserved seats in trains. According to the petition, the railway authorities in Bangladesh are required by statute to have a separate compartment for women, but no such compartment exists in the trains. Furthermore, women do not feel safe and secure traveling at night, and the petition claims that if the railway authorities kept a designated compartment for female passengers, they would be able to travel comfortably. In addition, a legal notice was issued in October 2020 requesting the allocation of a separate compartment for women, and the authorities involved failed to take any concrete action in this regard.

The HCD issued a rule in response to the petition directing the secretaries to the ministries of railway and home affairs, director general, manager and inspector of railway department to clarify why the railway authorities should not be ordered to have separate compartments for women. Also, another rule was issued requiring the government to clarify as to why directives should not be given to assign separate seats to women, children, persons with disabilities, or senior citizens of the nation.

The writ petition, undoubtedly, involves a crucial issue of our society regarding the vulnerable state of the women, children, physically challenged people and senior citizens of the state. As such, the court has correctly observed the merit of the writ and consequently issued such an order. It is expected that the court will establish the pertinent order in light of the petition to uphold the rights of the said citizens and make their day to day life easier and comfortable. 

Rejecting appeal of Oishee Rahman over parent murder case

In November 2015 a Dhaka court found Oishee guilty of murdering her parents, police Inspector Mahfuzur Rahman and Swapna Rahman, and sentenced her to death. On 16 August of 2013 SB Inspector Mahfuzur and his wife were discovered dead at their Chamelibagh home in Dhaka. The next day Mahfuzur’s brother lodged a complaint with the Paltan Police Station. Oishee later admitted to murdering her parents and surrendered to authorities. Mizanur Rahman, Oishee’s friend and partner, was sentenced to two years in prison, while another associate, Asaduzzaman Rony, was acquitted.

The HCD commuted Oishee’s sentence to life imprisonment in June 2017. Recently, on 15 March the SC’s Appellate Division rejected an appeal opposing Oishee  Rahman’s life-term sentence. Moreover, the Supreme Court has granted Oishee permission to file an appeal against her life imprisonment.

Considering the age and other circumstances, including the influence of drugs on her, this decision of the court seems to have correctly observed the merit of the case. It also addressed some crucial issues which act as barriers to grant death penalty to an accused of murder and have set a new precedent.